Ownership of Underwater Cultural Heritage in the Area

This article addresses the ownership of Underwater Cultural Heritage (“UCH”) on the ocean floor outside of any nation’s jurisdiction (“the Area”), which was discussed, but not settled, in the two main international marine conventions: the 1982 United Nations Convention on the Law of the Sea (“1982 UNCLOS”) and the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) Convention on the Protection of the Underwater Cultural Heritage (“2001 Convention”). After analyzing the relevant provisions of Articles 136, 149, and 303 in the 1982 UNCLOS and Article 12(6) in the 2001 Convention, two approaches were designed to settle ownership issues in the Area: the principle of common heritage of mankind as the general approach and the preferential right to the concerned “state of origin” as the Lex specialis approach. This article addresses the ownership of UCH in the Area by analyzing the substantial criteria of these two approaches. Part two introduces the two approaches originally used to settle the tough ownership issue of property, then analyzes why the two approaches were expressed too vaguely to be efficiently applied to the ownership disputes, specifically, because of the drafting process and the nature of the term “state of origin.” Part three describes my own approach to the substantial criterion of the Lex specialis approach. This Article tries to explore the effective link between the relative UCH and the state of origin. I conclude cultural identity is a substantial criterion of Lex specialis approach, and is part of the legal and jurisprudential basis of the cultural identity and the application of the cultural identity in the current international legal system. Part four is a broader consideration of the substantive criterion of the general approach. The general goal is not only to preserve UCH for mankind as a whole, but, more importantly, to encourage contracting parties or specific international organizations to cooperate in the recovery and protection of UCH, while respecting the principles of non-commercial exploitation and “in situ” preservation as a preferred option.